P L D 1991 LAHORE 78

AHMAD TARIQ RAHIM

V/S

FEDERATION OF PAKISTAN

Per Muhammad Rafiq Tarar C J

(a) Constitution of Pakistan (1973), Articles 58(2)(b) & 199

The controversy in essence which falls for determination in these petitions is, as to whether the order passed by the President under Article 58(2)(b) of the Constitution of the Constitution of the Islamic Republic of Pakistan (hereinafter referred to as the ‘Constitution’ can be judicially reviewed in exercise of the power vested in this Court by Article 199 of the Constitution. The answer to the question does not present any difficulty in view of the authorities pronouncement of the Supreme Court of Pakistan in case “Federation of Pakistan and others v Haji Muhammad Saifullah Khan and others” P L D 989 SC 166 wherein it was held that the opinion formed by the President that the Government of the Federation cannot be carried on in accordance with the provisions of the Constitution, can be subjected to scrutiny trough judicial review and in case the President chooses to state the grounds for the action taken, the Court can examine the same to find out whether or not there is any nexus between the grounds and the preconditions envisaged by Article 58(2)(b) of the Constitution empowering the President to dissolve the National Assembly in his discretion.(p. 90) WWW

(b) Constitution of Pakistan (1973), Article 58(2)(b)

It is not possible to precisely enumerate the situations in which Article 58(2)(b) of the Constitution can be validly be exercised. The failure of Constitutional machinery may result from internal subversion or dissensions; the deadlock arising from indecisive electoral verdict and political polarisation which makes the carrying on the Government impossible or where the Government is being conducted in disregard of the Constitution and the law. (p. 90) XXX

(c) Constitution of Pakistan(1973), Article 58(2)(b)

After having considered the arguments of the learned counsel for the parties ad perusal of the material placed by them on the record, we find the President was justified in forming the opinion that the Government of the Federation cannot be carried on in accordance with the provisions of the Constitution and an appeal to the electorate was necessary. This opinion could validly and reasonably be formed from, amongst others, the following acts of commission ad omission of the Federal Government: –

(i) No substantial legislative work had been and could be carried on by the Government in the National Assembly inter alia for the reason that the Government had virtually no representation in the Senate. During its twenty months’ tenure, out of fifty Ordinances/Bills presented before the National Assembly only fifteen could be passed by the Parliament while the remaining thirty-five were not processed and allowed to lapse.

(ii) The Federal Government miserably failed to perform its obligation under Article 148(3) of the Constitution to protect the Province of Sindh against internal disturbances which continued unabated and assumed serious proportions beyond the control of the Provincial Government. Despite repeated advice of the President, clear view expressed by the Governor of Sindh and opinion of the then Attorney-General resort to the provisions of Article 245 of the Constitution was not made resulting in colossal loss of life and property thereby endangering the integrity and solidarity of Pakistan.

(iii) The Constitution envisages Pakistan as an Islamic Federal Republic, wherein the Federal Government and the Federating Units have well defined powers and sphere of operation. A mechanism is inbuilt in the Constitution to resolve disputes between the Federation and its units and between the units inter se. Inaction on the part of the Federation in resolving such disputes may endanger the federal structure of the State itself. In this regard one of the important institution is the Council of Common Interests constituted under Article 153 of the Constitution. It formulates and regulates policies in relation to matters in Part II of the Federal Legislative List and Entry 34 (Electricity) in the Concurrent List (refer Article 154), supervises and controls the related institutions and is also required to determine the rates of which not profits are to be calculated in terms of article 161. The documents on record reveal that the Federal Government despite repeated demands by three out of four federating units and unanimous resolution of the Senate, failed to call a meeting of the Council of Common Interests resulting in polarisation and confrontation
between the Federation and two federating units which eventually obliged them to file a suit against the Federation in the Supreme Court of Pakistan.

(iv) The formation of the National Finance Commission, another importann institution, required to be set up under Article 160 of the Constitution for distribution of revenues between the Federation and the Provinces was unnecessarily delayed with the result that not a single meeting could be convened thereby depriving the federating units to have redress of their grievances.
(v) The provincial autonomy guaranteed by the Constitution was eroded by launching People’s Works Programme in a manner contrary to Article 97 of the Constitution without any legislative backing.

(vi) Article 14 of the Constitution guarantees that the dignity of man and subject to law, the privacy of home shall be inviolable. This fundamental right was flagrantly violated and disregarded by tapping the telephones of highly respected persons, including dignitaries like the Chairman of the Senate and Speaker of National Assembly. Even the members of the Government party were not spared, petitioner being one of those whose telephones were tapped.

(vii) Important Constitutional organs of the State like the Senate and superior Judiciary were publicly ridiculed and brought into disrespect. Even the legal existence and validity of the Senate was disputed by the Federal Government.

(viii) Misuse by the Federal Government of Secret Service Funds running into crores of rupees and unauthorised use of aircrafts belonging to P.A.F. and P.I.A. for transportation of M.N.As. at the time of No-Confidence Motion.

(ix) Wholesale and indiscriminate appointments in the Civil Services of Pakistan and the Services under the Statutory Corporations in violation of law.

From the above it is manifest that the grounds which prevailed with the President for passing the impugned order have direct nexus with the conditions prescribed by Article 58(2)(b) of the Constitution. It is also borne out from the record that there was material available with the President on the basis of which he could opine that the Government of the Federation could not be carried on in accordance with the provisions of the Constitution and an appeal to the electorate was necessary. (p. 90, 91 & 92) YYY

Per M. Mahboob Ahmad, J

Before parting with this aspect of the case it appears just and proper to take notice of the submission made by Mr. Ismail Qureshi, Advocate, who contended that the Federal Government in not giving effect to the judgment of the Supreme Court by legislating on the subject of Qisas and Diyat had failed to carry on the government in accordance with the provisions of the Constitution. The submission appears to have relevance when seen in the context of the position that the Federal Government not only did not present a legislation to give effect to the judgment of the Supreme Court but also showed its resistance by dubbing the punishment under the Islamic Laws as impracticable and cruel in the present day world. (p. 155) AAA

Per Muhammad Rafiq Tarar, CJ

(d) Constitution of Pakistan (1973), Article 58(2)(b)

We do not subscribe to the view that if one of the grounds is proved to be non-existent the entire order shall fall. This principle, in our opinion, is particular to the cases under detention laws and cannot be extended to the present case. (p. 92) ZZZ

(e) Constitution of Pakistan (1973), Article 199

As regards the objection to the validity of the Eighth Amendments in the Constitution raised by the learned counsel for the petitioner in W.Ps. Nos.5849 of 1990 and 379 (Peshawar) of 1990, suffice it to observe that this question was raised in case “Malik Ghulam Mustafa Khar and other v. Pakistan and other PLD 1988 Lah. 49 but was repelled by a Full Bench of this Court. The Supreme Court of Pakistan while deciding the appeal against that judgment, did not take a contrary view. Furthermore, as the matter is pending before the Supreme Court in appeal filed by Abdul Mujeeb Pirzada against the judgment of Sindh High Court, we do not consider it appropriate to reopen this controversy, especially when in the two petitions filed by directly affected persons, this argument was not raised, rather all the other learned counsel made a joint request to leave this matter for decision by the Supreme Court. (p. 92) AAAA

(f) Constitution of Pakistan (1973), Articles 58(2)(b) & 199

This Court has to concentrate on the material placed before it, which was taken into consideration by the President for forming honest opinion that the Government of Federation could not be carried on in accordance with the provisions of the constitution. As to the reasons given in the Order, where they disclose direct nexus with the preconditions, prescribed in Article 58 of the Constitution, this Court is not to sit in appeal over the impugned Order of the President nor to substitute its own findings for the Order of the President. Now, the stage is set for examination of the precise submissions of the learned counsel for the parties made at the Bar, in the light of documents on the file. (p.103)B
(g) Constitution of Pakistan (1973), Article 58(2)(b)

We find force in the submission of the learned Attorney-General and, in the light of pronouncement made by the Supreme Court in the aforesaid case, observe that if situation arises where the Government of Federation cannot be carried on in accordance with the provisions of the Constitution, it is the prerogative of the President to dissolve the National Assembly, provided the preconditions set out in Article 58(2)(b) of the Constitution are fully satisfied. (p. 104) C

PREAMBLE

The Sindh High Court in a Full Bench case, Abdul Mujeeb Pirzada v. Federation of Islamic Republic of Pakistan (PLD 1990 Kar. 9), also held the Amendments in the Constitution valid. The matter is sub judice in appeal before the Supreme Court. All the learned counsel except Dr. A.Basit, Advocate, made a joint request to leave this matter for decision by the Supreme Court. (p. 108) N

Per M. Mahboob Ahmad, J

The Supreme Court of Pakistan while deciding the appeal against that judgment, did not take a contrary view. Furthermore, as the matter is pending before the Supreme Court in appeal filed by Abdul Mujeeb Prizada against the judgment of Sindh High Court, I do not consider it appropriate to reopen this controversy, especially when in the two petitions filed by directly affected persons, this argument was not raised, rather all the other learned counsel made a joint request to leave this matter for decision by the Supreme Court of Pakistan. (p. 169) PPP

Per Muhammad Rafiq Tarar, C J)

(h) Constitution of Pakistan (1973), Article 58(2)(b)

After taking into consideration the background in which the impugned Order dissolving the National Assembly was passed by the President and the contentions raised by learned counsel for the parties referred to earlier, in our estimation, the President had rightly formed an opinion, that a situation had arisen in which the Government of Federation could not be carried on in arisen in which the provisions of Constitution and passed the Dissolution Order in exercise of his discretion. The President applied his mind to the facts and accompanying events and recorded resins in the self-contained Order. The sufficiency and adequacy of the reasons are not justiciable. (p. 110) Q

(i) Constitution of Pakistan (1973), Articles 58(2)(b) & 199

“Nevertheless, it cannot be denied that so far as newspaper reports of contemporaneous events are concerned, they may be admissible particularly where they happen to be events of local interest or of such a public nature as would be generally known throughout the community and testimony of an eye-witness is not readily available. The contemporary newspaper account may well be admitted in evidence in such circumstances as has often been done by Courts in the United States of American not because they are ‘business record’ or ancient documents’ but because they may well be treated as a trustworthy contemporaneous account of events…” (p. 105) G

The inter-departmental communications referred by the learned counsel are declassified documents, open to examination by the Court and were considered by the President before taking the impugned action. He took notice of the conflicts and events reflected through the correspondence exchanged between the Provincial Governments, the Federal Government and the President to form an opinion as to whether the Government of the Federation was functioning in accordance with the provisions of the Constitution. The documents on record were relevant for consideration of the President to form an opinion, and for this Court, to examine if the same had nexus with the preconditions set out in Article 58 of the Constitution. (p. 10) H

Per Mahbood Ahmad, J

(j) Constitution of Pakistan (1973), Articles 58(2)(b) & 199

The answer to the first part of the first proposition does not, therefore present any difficulty in view of the above authoritative pronouncement of Supreme Court of Pakistan and in the light of the principles laid down in the said authority it can safely be held and very respectfully so I do that the order that the President has passed on 6th of August, 1990 under Article 58(2)(b) of the Constitution can be judicially reviewed by this Court in exercise of the conferred on it by Article 199 of the Constitution of Islamic Republic of Pakistan. (p. 136) KK

(k) Constitution of Pakistan (1973), Articles 199 & 58(2)(b)

A review of the case-law on the subject clearly shows that judicial review contemplated for exercise of constitutional jurisdiction by this Court under Article 199 of the Constitutions has a scope distinct from its appellate jurisdiction. The power of judicial review cannot be over-stretched so as to make High Court an appellate forum against the order passed by the competent authority under the Constitution viz., the President in the instant case, so as to substitute his opinion by the opinion of the Court. The scope and extent of judicial review, would only be to the extent that the Court has to find out whether the opinion formed by the President is honest and is such which could be formed by a reasonable person keeping in view the attendant circumstances. If there be some material on the basis of which an opinion could be reasonably formed by the President, then the Court cannot interfere therewith merely because another view may be possible. Similarly, unless the exercise of discretion is shown to be mala fide, frivolous, capricious, vexatious or arbitrary, the power of judicial review will not be available in High Court to interfere with the discretion. (p.138) LL

(l) Constitution of Pakistan (1973), Articles 199 & 58(2)(b)

Before parting with this aspect of the case it may be observed that some of the learned counsel for the petitioners attempted to argue that the powers conferred upon the President under Article 58(2(b) ibid do not fit in the constitution of a Parliamentary form of Government and thus the same should be construed so as to practically divest the President from exercise of this power not see any force in this submission on two-fold basis: –

(1) That High Court being a creation of the Constitution itself neither add to it nor substract therefrom in any manner whatsoever as the power exercisable by this Court under Article 199 is subject to the Constitution; and

(2) That the premises that such a power does not exist in Constitution of other parliamentary forms of Government is wholly irrelevant inasmuch as the Constitutions of other countries having a parliamentary form of Government cannot be read into our Constitution. Apart altogether from the above proposition, the Constitution of every country is framed to suit the genius of its people who are to be governed therewith and it is not in all cases necessary or for that matter even possible that the parliamentary form of Government in every country should be run on some general principles of parliamentary forms even where Constitutional provisions are different. (p.138)MM

(m) Constitution of Pakistan (1973), Article 199

The universal application of the proposition as canvassed by Raja Muhammad Anwar, the learned counsel for the petitioner can otherwise also be not given effect to on yet another very weighty reason based on another well-settled principle of law that before striking down an order passed by a public authority the Court must explore every possible explanation for its validity and examine the entire field of powers conferred on the authority by which the impugned order has been passed and all efforts must be made to uphold it. (p. 147) OO
(n) Constitution of Pakistan (1973), Article 58(1) & (2)

Taking up the third proposition it would be seen that the word “also” has a special significance in the context of the provisions contained in clauses (1) and (2) of Article 58 of the Constitution The President’s power to dissolve the National Assembly under clause (1) is dependent upon the advice that may be rendered by the Prime Minister in this behalf. That means the power under Article 58(1) ibid is exercisable by a conjoint action of the Prime Minister and President. The use of word “also” in clause (2) of the Article 58 would therefore, clearly spell out that the President has an additional power to dissolve the National Assembly independent of the advice of the Prime Minister. (p. 147) PP

(o) Constitution of Pakistan(1973), Articles 58(2)(b) & 199

The words “discretion” and “opinion” used in clause (2) of Article placed in the provision lead to a plausible inference that the exercise of discretion has to follow the formation of an opinion. The opinion of course has to be objective whereas the discretion after the forming of a valid opinion appears to be subjective. It would make the burden of the President higher if the grounds are given and they led to a
legitimate conclusion. The court will not interfere in the exercise of the discretion merely on the ground that another conclusion may be possible. I draw support in the formation of the above view from the judgment of the Supreme Court of Pakistan in Haji Mohammad Saif Ullah’s case (p.148) OO

(p) Constitution of Pakistan (1973), Article 58(2)(b)

In the light of the discussion in the said judgment, the expression as quoted hereinabove can safely be construed to mean that an order under the aforementioned provision of the Constitution can only be passed by the President if the grounds taken by him in the order to hold that the Government of the Federation cannot be carried on in accordance with the provisions of the Constitution have a direct nexus with the various Constitutional provisions to which the Government of the Federation/the National Assembly were not adhering to thereby rendering a impossible to carry on the Government in accordance with the Constitution (p. 149) RR.

(q) Constitution of Pakistan(1973), Article 58(2)(b)

The words “an appeal to the electorate is necessary” will have to be examined on the light of the genesis of our Constitution which envisages Pakistan to be an Islamic Republic where per our belief the sovereignty over the entire universe belongs to Almighty Allah alone. It is ordained by God Almighty is Sura Al-Furqan, Verse 2 as follows: – (p.149) SS

The firm belief of Pakistanis in the Quraanic verses is fully reflected in the Preamble of our Constitution which is now its substantive part in view of Article 2A thereof. (p.151) TT

The effect of the above would be that whereas the real sovereignty over Pakistan vests in Almighty Allah, it is delegated to the people of Pakistan by Him as a sacred trust so that they exercise the authority through its chosen representatives i.e. the Members of the Parliament. If the sacred trust reposed in the Members of the Assembly by the people as delegated of God Almighty is abused, misused or is not exercised in accordance with the tenets of Islam and the Constitution, the President can by dissolving he Assembly make an appeal afresh to the people to whom the power has been delegated by Allah Almighty ad who in the common parlance of parliamentary language are the political sovereigns. (p. 151)UU

Looking at the matter in the above perspective it becomes clear that having farmed a written Constitution, the people of Pakistan would like to be governed in accordance with the Constitution. This mandate of the political sovereign if it is betrayed by a Government by not functioning in accordance with the Constitution, then the President who is vested with the power to dissolve the Assembly in such a situation by exercise of power under Article 58(2)(b) of the Constitution is under a Constitutional obligation to make an appeal to the electorate to elect a new Assembly so as to ensure that the mandate of the Constitution continues unabated without any let or hindrance from any quarter (p. 152) VV.

® Constitution of Pakistan (1973), Articles 58(2)(b) & 199

In the case in hand the newspapers clippings/reports relied upon by the Federation are undenied reports of events of the period during which the Pakistan People’s Party Government was in power in the Federation and the said reports/newspapers clippings have not in any manner, by production of a counter-resport or a denial been rebutted by the petitioner. Reference to the newspapers clippings/reports etc. view of above discussion can, therefore, be not refused and the material available therefrom can be referred to for the purpose of examining the soundness and validity of the grounds taken in the order of the President. It may further be observed that the newspaers clippings/reports were only a corroborative factor and not the root basis for the purposes of arriving at the opinion even by the President. (p. 153) WW

(s) Constitution of Pakistan(1973), Article 58(2)(b)

It may be observed in this regard that it is not possible to precisely enumerate the situations in which the power conferred by Article 58(2)(b) of the Constitution can be validly exercised. The failure of constitutional machinery may result from internal subversion or dissension; the deadlock arising from indecisive electoral verdict and political polarisation which makes the carrying on of the Government impossible or where the Government is being conducted in disregard of the Constitution and the law. (p. 153) XX

Per Manzoor Hussain Sial, J

(t) Constitution of Pakistan (1973), Article 58(2)(b) & 48(2)

The close examination of the aforementioned provisions of the Constitution shows that Article 58(2)(b) empowered the President to dissolve the National Assembly in his discretion provided he was satisfied that the Government of the Federation was not being carried on, in accordance with the provisions of the Constitution and appeal to the electorate was necessary, whereas Article 48(2) provided immunity from challenge, all actions of the President performed is exercised of his discretion as specified in the Constitution. (p. 171) TTT

The amendments suggested in Articles 48 and 58 of the Constitution aimed at placing certain limits on the powers of the President to dissolve the National Assembly could be dissolved only if the Government of the Federation could not be carried on in accordance with the provisions of the constitution and appeal to the electorate was necessary. The validity of extensive amendments made in the Constitution, thorough Eighth Amendment Act, 1985 by Parliament elected through party-less elections came under challenge before superior Courts of the country, inter alia, on the grounds, that the same were introduced in the Constitution by an unauthorised body, had the effect of illegally altering the basic structure of the Constitution and had made serious in-roads in the Islamic democratic and Parliamentary form of the Constitution. (p. 172) UUU